PROSECUTOR V. MIROSLAV KVOČKA ET AL., CASE NO. IT-98-30/1-A, JUDGEMENT, 28 FEBRUARY 2005

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1 PROSECUTOR V. MIROSLAV KVOČKA ET AL., CASE NO. IT-98-30/1-A, JUDGEMENT, 28 FEBRUARY 2005 A. NEW CASE-LAW/DEVELOPMENT OF EXISTING CASE-LAW Indictments: joint criminal enterprise Joint criminal enterprise...2 (a) JCE3 (extended): natural and foreseeable consequence... 2 (b) Aiding and abetting... 2 (c) Level of contribution... 3 (d) Physical perpetration... 4 (e) Position of authority... 4 (f) Motive... 5 (g) Intent crimes... 5 (h) Physical presence... 5 (i) Agreement... 6 (j) JCE2: concentration camps category... 6 (k) Murder... 6 (l) Knowledge of crimes Murder: definition Persecution...8 (a) Constitutive elements... 8 (b) Harassment and other psychological abuse... 8 (c) Inference of discriminatory intent Torture: public official Rape: definition...9 B. OTHER ISSUES OF PARTICULAR INTEREST Right to reasoned opinion Additional evidence on appeal: standard of review Sentencing: comparison with other cases Mitigating circumstances...13 (a) Raised for the first time on appeal (b) Voluntary intoxication (c) Voluntary surrender while incarcerated A. New case-law/development of existing case-law 1. Indictments: joint criminal enterprise 41. The Appeals Chamber reaffirms that the Prosecution should only plead those modes of responsibility which it intends to rely on. Although the Indictment relies on all modes of individual criminal responsibility found in Article 7(1) of the Statute, the Prosecution has failed to plead the material facts necessary to support each of these modes. For example, despite pleading ordering as a mode of responsibility, the Indictment does not include any material facts which allege that any Accused ordered the commission of any particular crime on any occasion. Thus, the Appeals Chamber finds that in pleading modes of responsibility for which no corresponding material facts are pleaded, the Indictment is vague and is therefore defective. 42. The Appeals Chamber also considers that the Indictment is defective because it fails to make any specific mention of joint criminal enterprise, although the Prosecution s case relied on this mode of responsibility. As explained above, joint criminal enterprise responsibility must be specifically pleaded. Although joint criminal enterprise is a means of committing, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute. Such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility. Moreover, in the Indictment the Prosecution has failed to plead the category of joint criminal enterprise or the 1

2 material facts of the joint criminal enterprise, such as the purpose of the enterprise, the identity of the participants, and the nature of the accused s participation in the enterprise Joint criminal enterprise (a) JCE3 (extended): natural and foreseeable consequence The Appeals Chamber affirmed that an accused may be responsible for crimes committed beyond the common purpose of the systemic joint criminal enterprise, if they were a natural and foreseeable consequence thereof. (para. 86). It then clarified the requirement that the crime be a natural and foreseeable consequence of the joint criminal enterprise: 86. Iğt is to be emphasized that this question must be assessed in relation to the knowledge of a particular accused. This is particularly important in relation to the systemic form of joint criminal enterprise, which may involve a large number of participants performing distant and distinct roles. What is natural and foreseeable to one person participating in a systemic joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them. Thus, participation in a systemic joint criminal enterprise does not necessarily entail criminal responsibility for all crimes which, though not within the common purpose of the enterprise, were a natural or foreseeable consequence of the enterprise. A participant may be responsible for such crimes only if the Prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him. (b) Aiding and abetting 89. The Appeals Chamber notes that in the Vasiljević Appeal Judgement, the Appeals Chamber discussed the correct distinction between co-perpetration by means of a joint criminal enterprise and aiding and abetting: (i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design. (ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a coperpetrator, the requisite mens rea is intent to pursue a common purpose Applying the Vasiljevi} definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of 1 See, e.g., Prosecutor v. Stani{i}, Case No. IT PT, Decision on Defence Preliminary Motions, 14 November 2003, p. 5; Prosecutor v. Meaki} et al., Case No. IT PT, Decision on Du{ko Kne evi} s Preliminary Motion on the Form of the Indictment, 4 April 2003, p. 6; Prosecutor v. Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39&40-PT, Decision on Prosecution s Motion for Leave To Amend the Consolidated Indictment, 4 March 2002, para Vasiljević Appeal Judgement para. 102; see also Tadić Appeal Judgement, para. 229; Krnojelac Appeal Judgement paras

3 persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a coperpetrator. 91. The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself. 3 Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime. 92. The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than coperpetration in a joint criminal enterprise. 4 (c) Level of contribution 96. The Appeals Chamber has explained the actus reus of the participant in a joint criminal enterprise as follows: First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose The Appeals Chamber notes that, in general, there is no specific legal requirement that the accused make a substantial contribution to the joint criminal enterprise. However, there may be specific cases which require, as an exception to the general rule, a substantial contribution of the accused to determine whether he participated in the joint criminal enterprise. 6 In practice, the significance of the accused s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose.. See also paras 188 and 599: 188. The Appeals Chamber recalls however that the significance and scope of the material participation of an individual in a joint criminal enterprise may be relevant in determining whether that individual had the requisite mens rea. 7 The extent of the material participation is also a decisive factor when assessing the responsibility of an individual for aiding and abetting the crimes committed by the plurality of persons involved in the joint criminal enterprise. As stated in the Tribunal s case-law, the aider and abettor must make a substantial contribution to the crime in order to be held responsible The Appeals Chamber maintains the general rule that a substantial contribution to the joint criminal enterprise is not required, 9 but finds that, in the present case of opportunistic 3 Prosecutor v. Milutinovi} et al., Case No.: IT AR72, Decision on Dragoljub Ojdani} s Motion Challenging Jurisdiction-Joint Criminal Enterprise, 21 May 2003, para Vasiljević Appeal Judgement, para. 102; Krnojelac Appeal Judgement, para. 75 ( T he acts of a participant in a joint criminal enterprise are more serious than those of an aider and abettor since a participant in a joint criminal enterprise shares the intent of the principal offender whereas an aider and abettor need only be aware of that intent. ) 5 Vasiljevi} Appeal Judgement, para. 100 (footnotes omitted). 6 See e. g. below, para. 599 (the case of opportunistic visitors who enter the camp to commit crimes). 7 Ibid. See above, para Ibid., paras Appeal Judgement, para

4 visitors, a substantial contribution to the overall effect of the camp is necessary to establish responsibility under the joint criminal enterprise doctrine. (d) Physical perpetration 99. Appellant Kvočka appears to argue that a co-perpetrator in a joint criminal enterprise must physically commit part of the actus reus of a crime in order to be criminally liable. 10 The Appeals Chamber disagrees. A participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met. As the Tadić Appeals Chamber explained, a lthough only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. 11 This is particularly evident with respect to the systemic form of joint criminal enterprise at issue in the present case. (e) Position of authority 101. The Appeals Chamber affirms that the de facto or de jure position of employment within the camp is only one of the contextual factors to be considered by the Trial Chamber in determining whether an accused participated in the common purpose. A position of authority, however, may be relevant evidence for establishing the accused s awareness of the system, his participation in enforcing or perpetuating the common criminal purpose of the system, and, eventually, for evaluating his level of participation for sentencing purposes The Appeals Chamber notes that in assessing the level of contribution to a joint criminal enterprise which can be inferred from positions held in a camp, the Trial Chamber reviewed some of the post-world War II jurisprudence. Upon review, the Trial Chamber held that: The concentration camp cases seemingly establish a rebuttable presumption that holding an executive, administrative, or protective role in a camp constitutes general participation in the crimes committed therein. An intent to further the efforts of the joint criminal enterprise so as to rise to the level of co-perpetration may also be inferred from knowledge of the crimes being perpetrated in the camp and continued participation which enables the camp s functioning. 13 The Appeals Chamber finds that the Trial Chamber did not err in its discussion of these early cases. As it is clear that there is no requirement of membership in a group, beyond playing a role in a camp, in order to incur joint criminal enterprise responsibility, Appellant Prca} s submission is rejected In another related argument, Appellant Radić submits that he should not be found guilty as a co-perpetrator since the Trial Chamber acquitted him of all charges based on superior responsibility. 14 The suggestion implicit in this argument is that a person lacking sufficient authority to be considered a superior would necessarily also lack sufficient authority to make a significant contribution to a systemic joint criminal enterprise. The Appeals Chamber notes that participation in a joint criminal enterprise pursuant to Article 7(1) of the Statute and superior responsibility pursuant to Article 7(3) of the Statute are distinct categories of individual criminal responsibility, each with specific legal requirements. 15 Joint criminal enterprise responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant 10 Kvočka Appeal Brief, para. 162 ( T he action has to be part of co-perpetration of some offense and also give its contribution to co-perpetration in the great extent ). 11 Tadić Appeal Judgement para. 191; see also para. 192: Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility. 12 Krnojelac Appeal Judgement, para Trial Judgement, para. 278 (footnote omitted). 14 Radić Reply Brief paras 52-53, Blaski} Appeal Judgement, para. 91; see below, paras 144,

5 (f) Motive contribution. 16 Moreover, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute for the same crime. Where the legal requirements of both forms of responsibility are met, a conviction should be entered on the basis of Article 7(1) only, and the superior position should be taken into account as an aggravating factor in sentencing. 17 Thus, Appellant Radić s argument is dismissed 106. The Appeals Chamber notes that it has repeatedly confirmed the distinction between intent and motive: The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In the Tadic appeal judgement the Appeals Chamber stressed the irrelevance and inscrutability of motives in criminal law. 18 Shared criminal intent does not require the co-perpetrator s personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise. 19 Therefore, the Appellants argument in this regard is rejected. (g) Intent crimes 109. The Trial Chamber held that: Where the crime requires special intent, such as the crime of persecution charged in count 1 of the Amended Indictment, the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political, racial, or religious grounds if he is a co-perpetrator. However, if he is an aider or abettor, he need only have knowledge of the perpetrator s shared intent. This shared knowledge too can be inferred from the circumstances. If the criminal enterprise entails random killing for financial profit, for instance, that would not necessarily demonstrate an intent to discriminate on political, racial or religious grounds. If the criminal enterprise entails killing members of a particular ethnic group, and members of that ethnic group were of a differing religion, race, or political group than the co-perpetrators, that would demonstrate an intent to discriminate on political, racial, or religious grounds. Thus, a knowing and continued participation in this enterprise could evince an intent to persecute members of the targeted ethnic group The Appeals Chamber affirms the Trial Chamber s conclusion that participants in a basic or systemic form of joint criminal enterprise must be shown to share the required intent of the principal perpetrators. Thus, for crimes of persecution, the Prosecution must demonstrate that the accused shared the common discriminatory intent of the joint criminal enterprise. 21 If the accused does not share the discriminatory intent, then he may still be liable as an aider and abettor if he knowingly makes a substantial contribution to the crime.. (h) Physical presence 112. The Appeals Chamber affirms that a co-perpetrator in a joint criminal enterprise need not physically commit any part of the actus reus of the crime involved. 22 Nor is the participant in a 16 See above, para See Blaski} Appeal Judgement, para. 91, referring to Čelebići Appeal Judgement, para Jelesić Appeal Judgement, para. 49, referring to Tadi} Appeal Judgement, para. 269; see also Krnojelac Appeal Judgement, para Krnojelac Appeal Judgement, para Trial Judgement, para Krnojelac Appeal Judgement, para See e.g. Tadić Appeal Judgement, para

6 (i) Agreement joint criminal enterprise required to be physically present when and where the crime is being committed While it is legally possible for an accused to be held liable for crimes committed outside of his or her presence, the application of this possibility in a given case depends on the evidence The jurisprudence on this issue is clear. Joint criminal enterprise requires the existence of a common purpose which amounts to or involves the commission of a crime. The common purpose need not be previously arranged or formulated; it may materialize extemporaneously In the Krnojelac Appeal Judgement, the Appeals Chamber confirmed that the systemic form of joint criminal enterprise does not require proof of an agreement: The Appeals Chamber considers that, by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadi} case. Since the Trial Chamber s findings showed that the system in place at the KP Dom sought to subject non-serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, the Trial Chamber should have examined whether or not Krnojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers the principal perpetrators of the crimes committed under the system to commit those crimes. 25 (j) JCE2: concentration camps category (k) Murder 182. The Appeals Chamber wishes to point out that, although commonly referred to as the category known as concentration camps, the second category of joint criminal enterprise, known as systemic, covers all cases relating to an organised system with a common criminal purpose perpetrated against the detainees. This concept of criminal responsibility has been shaped by the case-law derived from concentration camp cases from the Second World War, but reference to the concentration camps is circumstantial and in no way limits the application of this mode of responsibility to those detention camps similar to concentration camps In a joint criminal enterprise such as that conducted in Omarska camp, it is necessary to prove that the death of the victim is the result of implementing a joint criminal plan, i.e., of setting up a system of ill-treatment. In this case it has to be proved that the death of the victim was the result of what happened in Omarska camp, be it inhumane conditions, beatings or ill-treatment. On this point, Kvočka rightly argues that the Trial Chamber must first establish the existence of the crime of murder. In this regard, the Appeals Chamber notes that the Trial Chamber did not provide a specific section for the murders committed in Omarska camp and for the specific responsibility of each of the accused for these murders. The Trial Chamber made, however, a number of findings throughout the Trial Judgement on the charges of murder alleged in the Indictment. The Appeals Chamber refers to its previous discussion in this respect 27 and recalls that such a generic approach does not invalidate the Trial Judgement. The Appeals Chamber dismisses Kvočka's contention that the Trial Chamber failed to evaluate the evidence in its ruling on the charges of murder In addition, contrary to Kvočka's claim, to find an accused guilty of the crime of murder it is not necessary to establish his participation in each murder. For crimes committed as part of a joint 23 Krnojelac Appeal Judgement, para Tadi} Appeal Judgement, para. 227(ii). See also Vasiljevi} Appeal Judgement, para Krnojelac Appeal Judgement, para See also Krnojelac Appeal Judgement, para See above, paras

7 criminal enterprise it is sufficient to prove not the participation of the accused in the commission of a specific crime but the responsibility of the accused in furthering the common criminal purpose. 28 (l) Knowledge of crimes 276. the Appeals Chamber concurs with the finding of the Trial Chamber that a participant in a joint criminal enterprise would not need to know of each crime committed in order to be criminally liable. 29 Merely knowing that crimes are being committed within a system and knowingly participating in that system in a way that facilitates the commission of a crime or which allows the criminal enterprise to function effectively or efficiently is enough in this regard. 3. Murder: definition 259. The Trial Chamber referred to the case-law of the ICTY and ICTR and adopted the following definition of the crime of murder: The ICTY and the ICTR have consistently defined the crime of murder as requiring that the death of the victim result from an act or omission of the accused committed with the intent to kill, or with the intent to cause serious bodily harm which the perpetrator should reasonably have known might lead to death. 30 The Appeals Chamber cannot but agree with the Trial Chamber s definition, but wishes to clarify the following In the Krnojelac case, the Trial Chamber rightly stated that proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered. 31 The fact of a victim s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber. All that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of acts or omissions of the accused or of one or more persons for whom the accused is criminally responsible Accordingly, for the crime of murder under Article 3 of the Statute to be established, the Prosecutor bears the onus of proving: 1) the death of a victim taking no active part in the hostilities; 2) that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible; 3) the intent of the accused or of the person or persons for whom he is criminally responsible a) to kill the victim; or b) to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death See Trial Judgement, para Trial Judgement, para. 312 and footnote Trial Judgement, para Krnojelac Trial Judgement, para Ibid., paras See also Tadić Trial Judgement, para Čelebići Appeal Judgement, para. 423; Kordi} and Čerkez Appeal Judgement, para. 37. See also. Jelisi} Trial Judgement, para. 35; Kupreški} et al. Trial Judgement, paras ; Blaski} Trial Judgement, para. 217; Kordi} and Čerkez Trial Judgement, para. 236; Krsti} Trial Judgement, para. 485; Krnojelac Trial Judgement, para. 324; Vasiljevi} Trial Judgement, para. 205; Staki} Trial Judgement, para. 584; Gali} Trial Judgement, para

8 4. Persecution (a) Constitutive elements 319. Referring to the case-law of the Tribunal, the Trial Chamber defined the constitutive elements of the crime of persecution as follows: (1) the occurrence of a discriminatory act or omission; (2) a basis for that act or omission founded on race, religion, or politics; and (3) the intent to infringe an individual s enjoyment of a basic or fundamental right 34 and, in more general terms, defined persecutions as the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article The Appeals Chamber finds no error in the constitutive elements identified by the Trial Chamber but prefers to adopt the wording of the Krnojelac Appeal Judgement, which was rendered after the delivery of the Trial Judgement in the present case and which it has endorsed in all its recent judgements: ( ) the crime of persecution consists of an act or omission which: 1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and 2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea) The Appeals Chamber also notes that with respect to the actus reus of the crime of persecutions, the Trial Chamber rightly noted that the acts included in the crime of persecution, be they considered in combination or separately, are of the same gravity as the enumerated crimes in Article 5 of the Statute. 37 Kvo~ka does not in fact contest the standard of gravity but refers to it to show the Trial Chamber s alleged error. The Appeals Chamber points out that to apply the standard of gravity, the acts must not be considered in isolation, but in context, by looking at their cumulative effect. 38 (b) Harassment and other psychological abuse 323. Harassment, humiliation and psychological abuse are not listed as such under Article 5 of the Statute nor do they constitute specific offences under other articles of the Statute. The Appeals Chamber notes however that Common Article 3(1)(c) of the Geneva Conventions prohibits outrages upon personal dignity, in particular humiliating and degrading treatment. The specific offence of outrages upon personal dignity also appears in Article 75(2)(b) of Additional Protocol I. 39 The Appeals Chamber also considers that acts of harassment and other psychological abuse, depending on the circumstances, can clearly be assimilated to violations of the mental well-being of persons prohibited under Article 75(2)(a) of Additional Protocol I. 40 The Appeals Chamber recalls incidentally that acts underlying persecution under Article 5(h) of the Statute need not be considered a crime in international law. See also paras Trial Judgement, para. 184, referring to Tadić Trial Judgement, para Trial Judgement, para. 184, refering to Kupreškić et al. Trial Judgement, para Krnojelac Appeal Judgement, para. 185; Vasiljević Appeal Judgement, para. 113; Blaskić Appeal Judgement, para. 131; Kordić and Čerkez Appeal Judgement, para Trial Judgement, paras See Trial Judgement, para. 185; also Kupreški} et al. Trial Judgement, paras 615(e) and 622; Krnojelac Trial Judgement, para See also Article 4(2)(e) of Additional Protocol II. 40 See ibid. 8

9 (c) Inference of discriminatory intent 366. discriminatory intent of crimes cannot be inferred directly from the general discriminatory nature of an attack characterized as a crime against humanity. However, the discriminatory intent may be inferred from the context of the attack, provided it is substantiated by the surrounding circumstances of the crime. 41 Accordingly, the Appeals Chamber found in the case Prosecutor v. Krnojelac that, when beatings were inflicted only on the non-serb detainees in a prison, it was reasonable to conclude that these beatings were committed because of the political or religious affiliation of the victims, and that these acts were committed with the requisite discriminatory intent. 42 In the present case, it appears that almost all the detainees in the camp belonged to the non-serb group. It was reasonable to conclude that the reason for their detention was their membership in this group and therefore of a discriminatory nature. 5. Torture: public official 284. The Appeals Chamber will next consider whether or not the Trial Chamber committed an error of law in not requiring that the crime of torture be committed by a public official or, in the case of a plurality of perpetrators, that at least one of the persons involved in the torture process be a public official. This question was resolved by the Appeals Chamber in the Kunarac Appeal Judgement. In that case, the Appeals Chamber concluded that the Kunarac Trial Chamber was correct to take the position that the public official requirement was not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention. 43 The Appeals Chamber in the present case reaffirms that conclusion.. 6. Rape: definition 395. The Trial Chamber relied on the definition of rape as given in the Kunarac et al. Trial Judgement, 44 which reads as follows: In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim s free will, assessed in the context of the surrounding circumstances. 45 This definition was confirmed by the Appeals Chamber, which added that the assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts. 46 Any diverging definition of the crime in Yugoslav law is irrelevant. Radić s argument that the Statute was not in force when the crimes were committed 47 is without merit: the prohibition of rape in armed conflicts has been long recognized in international treaty law as well as in customary international law Krnojelac Appeal Judgement, para Ibid., para. 186; Kordi} and Čerkez Appeal Judgement, para Kunarac et al. Appeal Judgement, para Trial Judgement, para Kunarac et al. Trial Judgement, para Kunarac et al. Appeal Judgement, para Radić Reply Brief, para Furundžija Trial Judgement, para. 168; Čelebići Trial Judgement paras ; Furundžija Appeal Judgement, para

10 B. Other issues of particular interest 1. Right to reasoned opinion 23. The Appeals Chamber recalls that every accused has the right to a reasoned opinion under Article 23 of the Statute and Rule 98ter(C) of the Rules. 49 However, this requirement relates to the Trial Chamber s Judgement; the Trial Chamber is not under the obligation to justify its findings in relation to every submission made during the trial. The Appeals Chamber recalls that it is in the discretion of the Trial Chamber as to which legal arguments to address. With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record. 50 It is to be presumed that the Trial Chamber evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber s reasoning, but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective. Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail. 51 If the Trial Chamber did not refer to the evidence given by a witness, even if it is in contradiction to the Trial Chamber s finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings. It is therefore not possible to draw any inferences about the quality of a judgement from the length of particular parts of a judgement in relation to other judgements or parts of the same judgement. 24. The Appeals Chamber notes that, in certain cases, the requirements to be met by the Trial Chamber are higher. As an example of a complex issue, the Appeals Chamber considered the appraisal of witness testimony with regard to the identity of the accused: While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a reasoned opinion. In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence. 52 But even in those cases, the Trial Chamber is only expected to identify the relevant factors, and to address the significant negative factors. If the Defence adduced the evidence of several other witnesses, who were unable to make any meaningful contribution to the facts of the case, even if the conviction of the accused rested on the testimony of only one witness, the Trial Chamber is not required to state that it found the evidence of each Defence witness irrelevant. On the contrary, it is to be presumed that the Trial Chamber took notice of this evidence and duly disregarded it because of its irrelevance. In general, as the Furund`ija Appeals Chamber stated: The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that the extent to which this duty... applies may vary according to the nature of the decision and can only be determined in the light of the circumstances of the case The Appeals Chamber therefore emphasizes that it is necessary for any appellant claiming an error of law because of the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which he submits the Trial Chamber omitted to address and to explain why 49 Furund`ija Appeal Judgement, para. 69; Kunarac et al. Appeal Judgement, para Čelebići Appeal Judgement, para. 498; Kupreškić et al. Appeal Judgement, para. 39; Kordi} and Čerkez Appeal Judgement, para See also above, para Čelebići Appeal Judgement, paras 481, 498; Kupreškić et al. Appeal Judgement, para Kupreškić et al. Appeal Judgement, para Furund`ija Appeal Judgement, para. 69 (footnotes omitted). 10

11 this omission invalidated the decision. 54 General observations on the length of the Judgement, or of particular parts of the Judgement, or of the discussion of certain parts of the evidence, do not qualify, except in particularly complex cases, as the basis of a valid ground of appeal Additional evidence on appeal: standard of review 426. The Appeals Chamber has granted in part a motion by Žigić to adduce additional evidence, 56 and has heard two additional witnesses and two rebuttal witnesses. In determining whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice, the Appeals Chamber has set out the applicable test in the Kupreškić et al. Appeal Judgement: The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings. 57 In Blaskić, the Appeals Chamber cited and affirmed that test. The Appeals Chamber noted that in the context of the Kupreškić case, the Appeals Chamber simply applied a deferential standard of review to the totality of the evidence admitted both at trial and on appeal, because the appellant had successfully established that no reasonable trier of fact could have reached a finding of guilt based on that evidence. 58 However, as the Appeals Chamber in Blaškić further correctly noted, the Appeals Chamber in Kupreškić was not faced with the question of what test to apply where the outcome would be that in light of the trial evidence considered together with the additional evidence admitted on appeal, a reasonable trier of fact could reach a conclusion of guilt beyond a reasonable doubt. 59 In that case, the Appeals Chamber in Blaškić concluded that it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal. 60 Consequently, the Appeals Chamber in Blaškić answered the question left open in Kupreškić, further developing the test first articulated therein. In reaching this conclusion, the Appeals Chamber in Blaškić underscored that such a standard of review is necessary in the interests of justice as well as for reasons of due process when considering a case before this International Tribunal because, if any lower standard were to be applied, then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of the evidence relied upon in the case be reached by either Chamber beyond reasonable doubt. 61 The Appeals Chamber in Blaškić indicated, when summarizing the above test, the following two steps in a case where an error of fact is alleged and additional evidence proffered by the Defence is admitted: (i) The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law Cf. Kordi} and Čerkez Appeal Judgement, para Cf. Decision on Prosecution Motion Requesting Order to Zoran Žigić to File Grounds of Appeal, 14 June 2002, para Decision on Appellants Motion to Admit Additional Evidence Pursuant to Rule 115, 16 February Kupreškić et al., Appeal Judgement, paras Blaškić Appeal Judgement, para. 22. Cf. Musema Appeal Judgement, paras In Musema, the Appeals Chamber applied that same deferential standard of review in quashing the accused s conviction for rape because it found that on the basis of the totality of the evidence, a trier of fact would have reasonable doubt as to the accused s guilt. 59 Blaškić Appeal Judgement, para Ibid. 61 Ibid. 62 The Appeals Chamber notes that this is a summary of the test developed in para. 23 of the Blaškić Appeal Judgement and must therefore be read taking into consideration the entire context of the decision with regard to this holding. In light of the affirmation of the test first articulated in the Kupreškić Appeal Judgement and the reasoning found in paras 11

12 (ii) If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt It has of course to be borne in mind that, as the Appeals Chamber has noted several times, the task of hearing, assessing and weighing the evidence is left primarily to the Trial Chamber: The reason that the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known. The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness s testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points Therefore, the Appeals Chamber will uphold a conviction on the basis that a reasonable trier of fact could have arrived at a conviction on the evidence on the trial record in two cases: (i) if there is no additional evidence admitted; (ii) if additional evidence is admitted, but upon further review, is found to be not credible or irrelevant, so that it could not have been a decisive factor in reaching the decision at trial. 65 See also Separate Opinion of Judge Weinberg de Roca and Separate Opinion of Judge Shahabuddeen. 3. Sentencing: comparison with other cases 681. Sentences of like individuals in like cases should be comparable and, in this regard, the Appeals Chamber does not discount the assistance that may be drawn from previous decisions rendered. 66 Indeed, the Appeals Chamber has observed that a sentence may be considered capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences. 67 The underlying question is whether the particular offences, the circumstances in which they were committed, and the individuals concerned can truly be considered like. Any given case contains a multitude of variables, ranging from the of the Blaškić Appeal Judgement, the Appeals Chamber considers that the Appeals Chamber in Blaškić obviously considered that if such a determination is also reached on the basis of the trial record taken together with the evidence admitted on appeal, then no further examination of the matter is needed. 63 Blaškić Appeal Judgement, para. 24(c). 64 Kupreškić et al. Appeal Judgement, para. 32 (footnote omitted). This was confirmed by Blaškić Appeal Judgement, para See e.g. Kupreškić et al. Appeal Judgement, paras In Kupreškić, the Appeals Chamber considered the testimony of Witness AT, admitted as additional evidence under Rule 115, as it pertained to Drago Josipović s appeal. The Appeals Chamber concluded that because Witness AT could not bring himself to tell the truth about his own involvement in the Ahmići attack and because Witness AT s wife was a close relative of Josipović, Witness AT s evidence was so unreliable as to Josipović s appeal that it was incapable of making his conviction for participation in the attack on Ahmići unsafe. Thus, the Appeals Chamber in Kupreškić did not need to take into consideration this additional evidence together with the evidence before the Trial Chamber and simply reviewed the safety of Josipović s conviction on the basis of whether a reasonable trier of fact could have convicted him on the basis of the trial record alone. It is true that the Appeals Chamber in Kupreškić then proceeded to assess Witness AT s testimony together with the trial record as if it theoretically was reliable evidence and concluded that, even then, it would not challenge the safety of Josipović s conviction. However, the Appeals Chamber considers that this latter analysis was pure dicta given that Witness AT s evidence had already been rejected as so unreliable by the Appeals Chamber in Kupreškić that it did not need to be considered any further with regard to reviewing Josipović s conviction. See also Rutaganda Appeal Judgement, paras , wherein the Appeals Chamber found that the additional evidence admitted in support of the accused s alibi was insufficiently probative for challenging the accused s conviction because the evidence so lacked credibility. The Appeals Chamber came to this conclusion because the evidence consisted of a personal opinion that was formulated upon underlying information that appeared to have no relevance for establishing that alibi. 66 ^elebi}i Appeal Judgement, para Jelisi} Appeal Judgement, para

13 number and type of crimes committed to the personal circumstances of the individual. Often, too many variables exist to be able to transpose the sentence in one case mutatis mutandis to another. Hence the Appeals Chamber has previously stated that: While it does not disagree with a contention that it is to be expected that two accused convicted of similar crimes in similar circumstances should not in practice receive very different sentences, often the differences are more significant that the similarities, and the mitigating and aggravating factors dictate different results. 68 Thus, while comparison with other sentences may be of assistance, such assistance is often limited. 69 For these reasons, previous sentences imposed by the Tribunal and the ICTR are but one factor to be taken into account when determining the sentence. 70 (a) Raised for the first time on appeal 4. Mitigating circumstances 674. As regards additional mitigating evidence that was available, though not raised, at trial, the Appeals Chamber does not consider itself to be the appropriate forum at which such material should first be raised. 71 Rule 85(A)(vi) provides that a Trial Chamber will consider any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more charges in the indictment. In this regard, the following passage from Kupre{ki} should be reiterated: (b) Voluntary intoxication If an accused fails to put forward any relevant information, the Appeals Chamber does not consider that, as a general rule, a Trial Chamber is under an obligation to hunt for information that counsel does not see fit to put before it at the appropriate time The Appeals Chamber now turns s submission that his extreme consumption of alcohol should be considered a mitigating circumstance. The jurisprudence of this Tribunal is clear that voluntary intoxication is not a mitigating factor. 73 In this regard, the Trial Chamber correctly stated: W hen mental capacity is diminished due to use of alcohol or drugs, account must be taken of whether the person subjected himself voluntarily or consciously to such a diminished mental state. While a state of intoxication could constitute a mitigating circumstance if it is forced or coerced, the Trial Chamber cannot accept Zigic s contention that an intentionally procured diminished mental state could result in a mitigated sentence. 74 (c) Voluntary surrender while incarcerated In considering whether an Appellant s surrender while incarcerated could be considered as voluntary and thus as a mitigating factor in sentencing, the Appeals Chamber found that given that the lack of cooperation between the authorities of Republika Srpska and the International Tribunal during the period under consideration may have impacted upon the likelihood of extradition, the voluntary surrender could be considered a mitigating factor (para. 712). However, the fact of incarceration meant that this mitigating factor would not be given much weight (para. 713). 68 ^elebi}i Appeal Judgement, para See also Furund ija Appeal Judgement, para ^elebi}i Appeal Judgement, para Krsti} Appeal Judgement, para ^elebi}i Appeal Judgement, para Kupre{ki} et al. Appeal Judgement, para Simi} Sentencing Judgement, para. 74; Todorovi} Sentencing Judgement, para. 94, footnote Trial Judgement, para